Below is a statement made on a thread in the General forum that might better be addressed here.

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This is on the Federal level. Lots of local governments are talking about banning all semi autos to and none seem to care at all about the Supreme Court's decision that it is unconstitutional to do so.

I am by no means knowledgeable on Supreme Court decisions or their implications. My question is, if the Supreme Court has so ruled how does it really mean anything? Maybe NY can't ban ALL semi auto's but they obviously can ban some. If they can ban 10 round magazines why can they not ban 2 round mags?

The Supreme Court has not ruled that banning all firearms of a certain type is unconstitutional. In Heller the SCOTUS ruled that the 2nd Amendment protects an individual RKBA rather than a collective right tied to military service. In McDonald the SCOTUS ruled that the 2nd Amendment applies to state and local governments as well as to the Federal Government.

Beyond that, in Heller Mr. Justice Scalia wrote in his dicta that the RKBA is not absolute, and is subject to "reasonable" regulation. (Obviously, Mr. Justice Scalia is a functional illiterate.) He wrote that the court was not going to discuss the constitutionality of any existing "presumptively constitutional" gun laws. What that means is that any gun control regulations short of a complete and total ban are presumed to be reasonable and lawful unless and until somebody takes a particular law to court and succeeds in having it declared unconstitutional.

1. You could offer yourself as a litigant with standing for SAF or NRA-ILA to sue your locale if and when it passes some restriction that affects you.

2. You could write and lobby your state and local officials to prevent such restrictions.

3. You could move to a state that preempts local restrictions, such as Florida, Georgia, or Pennsylvania. Even in such states, local governments often fail to get the memo until hit with court cases or state fines.

You have to look at all three Supreme Court Ruling on 2A. In 1939, SCOTUS ruled in United States v. Miller that the NFA was not in violation of 2A because the regulated weapons (in that particular case a short barrel shotgun) was not "in common use nor particularly suitable for use by the militia" and thus not subject to the protection of 2A. Furthermore, it is important that the NFA was not an outright ban, but rather heavy regulation and tax of said weapons.

Fast forward to Heller v. District of Columbia and SCOTUS ruled that a complete ban of firearms (in Dick Heller's case a handgun) was unconstitutional because 2A guarantees an individual, rather than collective right, to own firearms. Because SCOTUS ruled in Heller's favor, we can draw from the case that handguns, at least in the broadest sense, pass the "common use" test from Miller. In dicta, Justice Scalia noted that regulation or even bans of "dangerous or unusual" weapons would still pass constitutional muster, but he failed to elaborate on exactly what might constitute a "dangerous or unusual" weapon.

Now we get to McDonald v. Chicago in which SCOTUS ruled that 2A guaranteed the right to own a firearm not only at the federal level, but that the right was incorporated against state and local governments via the Due Process clause of 14A. This, in essence, says that if the feds can't ban it, neither can states or localities. This is not a pre-emption because there could possibly be regulations that the feds have simply chosen not to pursue that might still be constitutional at the state or local level. For example, I could see SCOTUS ruling that requiring a permit or license to carry a gun is constitutional even though the feds have no regulations on the matter outside of prohibiting it in gov't buildings.

So, it seems to me that the litmus test for what a state or local government could or couldn't ban would be the "common use" test from Miller. I very much doubt that a complete ban on all semi-automatics could survive a court challenge because semi-automatics are probably the most popular type of firearm in the country and have been in common use for over a century now. It would take some extremely "creative" reasoning to get around the fact that semi-automatic firearms are well-suited and widely used by both the organized militia (National Guard) and the unorganized militia (most everyone else).

Now, more specific bans such as those on "high capacity" magazines and "assault weapons" may or may not pass constitutional muster. Most of us would argue that because of their popularity amongst the unorganized militia (I've seen it quoted that AR-15 variants have been the best selling rifles in the country for a few years now) and their nearly exclusive use by the organized militia, that they should be considered "in common use" and thus bans of them are unconstitutional. That being said, SCOTUS doesn't always see things our way and I don't belive that their striking down an AWB is as sure a thing as we'd like it to be.

There are some few things in Miller that many don't or won't take the time to understand. That includes both sides of the gun-debate. So let's take a look at the way it is actually read:

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In the absence of any evidence

At the District court, there was no evidence offered that

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possession or use of a "shotgun having a barrel of less than eighteen inches in length" at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia,

Therefore,

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we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.

We can say that almost everyone "knew" that trench guns were used extensively during WW1. And that is possibly correct (but by no means, conclusive). But such a record did not exist at the district court. Since no record was developed at the lower court, the Justices concluded:

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Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment, or that its use could contribute to the common defense. Aymette v. State, 2 Humphreys (Tenn.) 154, 158.

So regardless of what common knowledge may have been as regards "trench guns," without a judicial record there was no official judicial notice.

McReynolds then goes on to discuss things that aren't relevant to this discussion. However, what is relevant, is the closing lines of the decision:

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We are unable to accept the conclusion of the court below, and the challenged judgment must be reversed. The cause will be remanded for further proceedings.

Meaning that the decision is voided and remanded back to the district court to further develop the record. We cannot say if the SCOTUS would have had a different opinion, had a complete record been made available.

We also know (now) that Miller was dead, by the time of the decision. So the case was never reheard and remains to this day, a very unusual case, in the annuals of Justice.

Today, we have to juxtapose the Miller "common military use" definition with the Heller "common use" by civilians definition. This is why Justice Scalia was circumspect when he addressed the M16. The M16 (and SBS) are in "common military" usage, but because of the NFA, such arms are not in "common use" by civilians. It's a thoroughly circular argument and we simply won't win this argument, any time soon. If ever.

Today, we have to juxtapose the Miller "common military use" definition with the Heller "common use" by civilians definition. This is why Justice Scalia was circumspect when he addressed the M16. The M16 (and SBS) are in "common military" usage, but because of the NFA, such arms are not in "common use" by civilians. It's a thoroughly circular argument and we simply won't win this argument, any time soon. If ever.

Al, a very astute analysis as always. You are, of course, correct that the "common use" test was changed with Heller. It seems to me that Scalia went to particularly great lengths to rule for an individual right without overturning Miller and, by extension, the NFA.

That being said, it seems pretty obvious to me that semi-automatic firearms, in general, would pass both the Miller and Heller "common use" tests fairly eaisly. What is more concerning to me is whether or not a more specific ban, such as one on "assault weapons" or "high capacity" magazines would pass the Heller test or not. To my way of thinking they certainly should, but I'd only rate the odds at about 50/50 that five justices would agree with me.

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Yet, despite the current rulings by the SCOTUS, despite the fact that the State of Rhode Island has a strong pre-emptive firearms law, we have this: Rhode Island: Providence Passes Resolution Banning Semi-Automatic Guns

Of course a locality can pass whatever asenine law they like, but enforcing it may be problematic. I think that the city of Providence would have a very difficult time convicting anyone of violating their new ordinance when it directly conflicts with the state pre-emption law. Even if they did manage to convict someone, the city would almost certainly get its proverbial hand smacked in the appeals process.

Now we get to McDonald v. Chicago in which SCOTUS ruled that 2A guaranteed the right to own a firearm not only at the federal level, but that the right was incorporated against state and local governments via the Due Process clause of 14A.

At the moment, the problem is that the exact contours of the right in question have yet to be hashed out. Essentially, we got recognition for the right to have some sort of handgun in the home, and we got it incorporated against the states. That's it.

So, if Peoria wants to ban ownership of some handguns and leave others, it's not unconstitutional at the moment. If Boise wants to acknowledge a right to ownership in the home but not a right to carry, that doesn't step on the Supreme Court's toes either.

As we make more progress on the legal definition of the right, we'll make more headway in its protection.

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